RECOMMENDATION 5

Part: 
Three
Chapter: 
2

Congress should amend Title 18 of the United States Code to specifically proscribe obscene cable and satellite television programming

The United States Code proscribes the utterance of "any obscene, indecent or profane language by means of radio communication."[123] Because cable and satellite television programming is not conveyed by any means interpreted by the courts to be a radio communication, any obscene programming is not covered by the prohibitions of the present statute.

The Cable Communications Policy Act of 1984 attempts to provide another avenue for the prosecution of obscenity shown over cable television.[124] The Act, provides:

Whoever transmits over any cable system any matter which is obscene or otherwise unprotected by the Constitution of the United States shall be fined not more than $10,000 or imprisoned not more than 2 years, or both.[125]

The provisions of this section may be in conflict with two other sections of the act governing editorial control of programming by cable operators. Section 531(e) of Title 47 provides that:

Subject to Section 544(d) of this title, a cable operator shall not exercise any editorial control over any public, educational or governmental use of channel capacity provided pursuant to this section.

In addition, Section 544(d) provides, in part:

(1) Nothing in this subchapter shall be construed as prohibiting a franchising authority and a cable operator from specifying, in a franchise or renewal thereof, that certain cable services shall not be provided or shall be provided subject to conditions, if such cable services are obscene or are otherwise unprotected by the Constitution of the United States. (2) (A) In order to restrict the viewing of programming which is obscene or indecent, upon the request of a subscriber, a cable operator shall provide (by sale or lease) a device by which the subscriber can prohibit viewing of a particular cable service during period selected by that subscriber.

Section 544(d) seems to contemplate allowing the operator to provide obscene programming while Section 559 makes it a crime to do so. The apparent conflict should be resolved and legislation should provide clear guidance for cable operations, federal prosecutors and law enforcement officers.[126]

Notes

  1. 18 U.S.C. S1464.
  2. 47 U.S.C. S559.
  3. Id.
  4. Senate Bill 1090 sponsored by Senator Jesse Helms (R-NC) would place a specific prohibition against obscene cable programming by amending Section 1464 of Title 18 of the United States Code. The Helms Bill provides in part:

    1464. Distributing obscene material by radio or television.

    1. "Whoever utters any obscene, indecent, or profane language, or distributes any obscene, indecent, or profane material, by means of radio or television, including cable television, shall be fined not more than $50,000 or imprisoned not more than two years, or both."

       

    2. "As used in this section, the term "distributes" means to send, transmit, retransmit, telecast, broadcast, or cablecast, including by wire or satellite, or produce or provide such material for distribution."

       

    The standard language of Title 18 provides several synonyms for the word "obscene". 18 U.S.C. S1461 provides, "Every obscene, lewd, lascivious, indecent, filthy or vile . . ."

    Enactment of legislation of this type would enable United States Attorneys to prosecute violators under the criminal code and alleviate the possible conflict under the Cable Communications Policy Act.